Dustin Nelson, KLJ Staff Editor
Professor Michele Cotton has recently argued that, in criminal law, the necessity defense and self-defense are “morally equivalent.” According to Cotton, there is no principled argument that can morally distinguish the defense of necessity from self-defense. Cotton goes on to argue that the “disdain” for the necessity defense in criminal law stems primarily from the fact that recognizing the defense would challenge “the criminal law’s traditional assumption that human beings exercise free will in choosing their actions.”
The rejection of the necessity defense, though, comes with a cost, says Cotton. By “avoiding anything that smacks of deterministic or even seemingly deterministic accounts of human behavior, the criminal law isolates itself from the influence of disciplines, including the sciences and social sciences, that could allow it to achieve more effective legal interventions.” Cotton warns that the criminal law’s unwillingness to consider modern interpretations of human behavior will potentially lead criminal law to “stagnate and [to] perhaps one day soon become the sole remaining outpost of a largely abandoned view of human behavior.” I will briefly argue, however, that Cotton is mistaken. The necessity defense is not rejected because it offends the free will assumption in criminal law. But because so rejecting the defense affirms the assumption.
Traditionally, the necessity defense and self-defense are seen as being closely related. “Both necessity and self-defense involve the situation where a person has committed an otherwise unlawful act as a means of protecting herself from an immediate threat.” A basic example of self-defense is killing or harming an individual that is an immediate threat to one’s life. Though fact specific, the courts recognize the possibility and legitimacy of this defense. That is, killing or harming an individual, an otherwise unlawful act, can be justified by self-defense when an individual, in some sense, has no other choice. There is no such justification for the necessity defense.
A classic example of the necessity defense is stealing food to prevent starvation. Consider, for instance, a situation in which an indigent, homeless man finds himself on the verge of starving to death. He has no job and no means of providing for himself. The man steals food from a grocery store, but is arrested. He raises the necessity defense, claiming that he had no other choice but to steal food in order to survive. Unfortunately for him, this defense will typically fail.
Cotton argues that there is no morally relevant difference between the potential defense raised by the homeless thief and by the self-defender. Nonetheless, criminal law accepts only one such defense. Cotton speculates that the reason for this “inconsistency” is due to the criminal law’s opposition to views that challenge the free will foundation of criminal law. At the foundation of the criminal law is the assumption that criminals have free will. “It is this free will assumption that undergirds the law’s self-description of itself as entitled to hold criminals morally responsible, and punish them in retribution, because they choose to commit their unlawful actions.” But,
[T]he traditional version of the necessity defense, if accepted by the law, would excuse the defendant based on his claim that he was driven to act by dire circumstances, circumstances that imposed such pressure that he could not have been expected to act other than he did. Even calling it the “necessity” defense suggests that it is at odds with the law’s assumption of free will.
In what remains, I will briefly argue that Cotton is mistaken. The necessity defense is not rejected because it offends the free will assumption of criminal law, but because so rejecting the defense affirms the assumption.
As I have already shown, Cotton argues that the necessity defense is rejected in criminal law because permitting the defense would, in some sense, erode the foundation of criminal law. It is this worry, Cotton argues, that motivates the rejection of the defense. I will argue that Cotton actually gets things backwards. Rejecting the necessity defense ultimately affirms the free will assumption.
In the typical self-defense situation, an individual is threatened with severe harm or death. And in these situations, the origin of the threat of harm or death is reasonably ascertainable. John aims a gun and Bob and says, “Your money or your life!” Bob knows that he must neutralize the threat from John for him to escape without harm. Bob could reasonably believe that he must kill John to survive. Most self-defense situations are like Bob’s. One might think in such a circumstance, for instance, “I must kill this person to survive.” In other words, in self-defense scenarios, there is typically no other person that could be killed in order to neutralize the threat. This is not case in instances in which the only defense is necessity.
Recall the homeless thief. Presumably, there is nothing intrinsic about the particular grocery store that forced the man to rob it. In such circumstances, the motivating factor is likely convenience, not necessity. Unlike the case of self-defense, it is not the case that the harm to be avoided by the homeless man can be avoided by taking only one course of action. It is less reasonable for the homeless thief to think that he must rob this store to survive. Thus, to the extent that there is some choice for our homeless thief, he cannot appeal to necessity. And, in fact, if he did choose a particular grocery store, the courts should not reward him for utilizing his free will in order to commit an unlawful act. Rather, by rejecting the necessity defense, courts affirm that in cases of supposed necessity, the individual still makes an unlawful choice out of his own free will.
A critic might reply that our homeless thief must nonetheless rob some grocery store in order to survive. But this would miss the point. If the homeless thief had time to choose, and go to, a different grocery store, then the necessity defense will nonetheless fail. Recall, Cotton says that “[b]oth necessity and self-defense involve the situation where a person has committed an otherwise unlawful act as a means of protecting herself from an immediate threat.” If my opponent insists that the homeless thief must nonetheless rob some grocery store, then she cannot also claim that he would be protecting himself from an immediate threat.
Finally, I concede that where an individual is facing a truly immediate threat and there is no actual decision-making about how to avoid the threat, then Cotton’s argument will hold. This, however, will be a severely circumscribed and narrow set of cases.
Professor Cotton argued that there is no morally relevant difference between self-defense and the necessity defense. I have argued, however, that the necessity defense can be distinguished by the choice that is present in instances of necessity that is not present in instances of self-defense. Namely, an individual in an instance of necessity typically has a viable choice as to how he commits his unlawful act. Individuals in cases of self-defense do not. Courts do not err by refusing to dismiss the unlawful choices of individuals.
 Michele Cotton, The Necessity Defense and the Moral Limits of Law, 18 New Crim. L. Rev. 35, 37 (2015).
 Id. at 37, 40.
 Id. at 70.
 Id. at 36.
 Id. at 41.
 Id. at 62-69.
 Id. at 62.
 Id. at 36, my emphasis.
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